Opinion
No. 106,088.
2012-06-1
Pamela K. WILLIAMS, Appellant, v. TACO TICO, INC., Appellee.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge. Pamela K. Williams, appellant pro se. Kenneth M. Clark, of Powell, Brewer & Reddick, L.L.P., for appellee.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge.
Pamela K. Williams, appellant pro se. Kenneth M. Clark, of Powell, Brewer & Reddick, L.L.P., for appellee.
Before GREENE, C.J., GREEN and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Pamela K. Williams appeals from the trial court's grant of summary judgment in favor of Taco Tico, Inc. (Taco Tico) on Williams' negligence allegation. On appeal, Williams makes the following arguments: (1) that the trial court erred when it granted summary judgment in favor of Taco Tico; (2) that the trial court erred because it failed to hold Taco Tico liable for allegedly violating several Kansas Administrative Regulations; and (3) that the trial court erred because it refused to add documents offered by Williams to the court record. We disagree. Accordingly, we affirm the trial court's decision.
The underlying facts of this case are heavily disputed. Williams' version of the underlying facts is as follows. On March 10, 2008, Williams went to a Taco Tico drive-thru in Wichita, Kansas. While at the Taco Tico, Williams asked a Taco Tico employee (employee) for a cup of water. The employee gave Williams a cup containing a liquid substance, and Williams drove away. Williams then began to drink the substance. After Williams drank about half of the liquid in the cup, she noticed that something was wrong. Williams thought that the employee had given her a bleach solution instead of water. Williams called Taco Tico to complain about the bleach solution in the cup. When Williams stated that she had been given bleach instead of water, the employee responded that “we don't use bleach at this store.” Williams then asked the employee where the water came from. The employee stated that it came “out of the faucet.”
Next, Williams went to the hospital where she was treated by Dr. Shanda Riley. At the hospital, Williams complained that her throat, chest, and stomach burned. Thus, the hospital staff treated Williams with several medications. After Williams received the medications, she went to the Kansas Department of Health and Environment (KDHE) where she met with supervisor Laura Quick. Williams gave Quick the cup from Taco Tico, which still contained the liquid substance that she maintained was bleach. Quick tested the substance and told Williams that the substance in the cup was chlorine. Quick then told Williams that if she had drunk the whole cup, she “would be dead.”
KDHE sent an inspector to Taco Tico to inquire about the liquid substance. The KDHE investigator filed a complaint investigation report of his or her findings. The report contained the investigator's theory as to what happened to Williams under the “inspector comments” section of the report. The inspector comments section stated:
“Went to the restaurant and the employee Nancy said she had tasted the water and it was a very strong bleach taste. The water was thrown out and the pitcher was rinsed, refilled, and was fine. My guess is that someone mistakenly filled it with ice and then served it to the complainant.”
At all stages of the litigation and on appeal, Taco Tico disputed the facts above quoted, which Williams presented.
The following facts are not disputed by the parties.
On March 23, 2010, Williams filed an amended petition against Taco Tico. In her petition, Williams alleged that she experienced the following: “Pain, suffering, Mental Anguish, Fright, Anxiety, Post Tramatic [ sic ] Stress, Apprehension caused by the Negligence for now and any likely to experience in the future.” Williams sought $250,000 in noneconomic damages and $75,000 for current and future medical expenses.
After both parties filed numerous motions and responses, Taco Tico moved for summary judgment. In its memorandum supporting the motion for summary judgment, Taco Tico argued that Williams' evidence was insufficient to meet her burden of proof as a matter of law and that Williams failed to show that she was physically injured.
On April 14, 2011, the trial court held a hearing on Taco Tico's summary judgment motion. At the hearing, Taco Tico reiterated why it believed that it was entitled to summary judgment. After Taco Tico argued its position, Williams argued why she believed that the trial court should not grant Taco Tico's summary judgment motion. In granting Taco Tico's motion for summary judgment, the trial court explained its reasoning:
“[W]hat I would observe, Miss Williams, is that it's a problem for you in this case for you representing yourself. Because you've chosen to represent yourself, I have to treat you the same way as I do the defendants who are represented by counsel. I have to assume that you know the law, that you know the rules of the court, and that's the problem that you're facing in this motion.... The problem Miss Williams, is that your response doesn't comport with [Rule 141]. You can't come to the Court and basically make speeches, which is what you've done. You've written out statements in your responses. You come here and have told me kind of your story, but it's not properly submitted to the court. We don't have affidavits or transcripts of sworn depositions or other supporting legal documents to support your contentions. Because your answer and responses don't adequately comply with Rule 141, I have to deem the defendant's allegations of uncontested facts as true, and by deeming them as true 1 have to grant the defendant's motion for summary judgment.”
The trial court also reasoned that Taco Tico was entitled to summary judgment because Williams had failed to show a physical injury to support her allegation that she had suffered mental injuries. The trial court issued a journal entry of judgment that mirrored its ruling from the bench.
Williams filed a timely notice of appeal from the trial court's grant of summary judgment. Did the trial court err when it granted Taco Tico's motion for summary judgment?
William first argues that that the trial court erred when it granted summary judgment in favor of Taco Tico. On the other hand, Taco Tico disagrees and argues, in part, that summary judgment was proper because Williams failed to comply with Supreme Court Rule 141 (2011 Kan. Ct. R. Annot. 232) and K.S.A. 60–256(e).
When the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. To preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, the same rules apply; summary judgment must be denied if reasonable minds could differ as to the conclusions drawn from the evidence. Osterhaus v.. Toth, 291 Kan. 759, 768, 249 P.3d 888 (2011).
Summary judgment should be granted with caution in negligence actions. Esquivel v. Watters, 286 Kan. 292, 296, 183 P.3d 847 (2008). Nevertheless, summary judgment is proper in a negligence action if the defendant shows there is no evidence indicating negligence. Edwards v. Anderson Engineering, Inc., 284 Kan. 892, 904, 166 P.3d 1047 (2007). Summary judgment is also proper in a negligence action if the only questions presented are questions of law.
Even though a negligence action is presented in this case, Taco Tico argues that summary judgment was proper here because Williams had failed to comply with Supreme Court Rule 141 and K.S.A. 60–256(e). Taco Tico contends that Williams failed to comply with Rule 141 and K.S.A. 60–256(e) because she “filed a response brief, but presented no arguments, facts, exhibits, affidavits or other evidence to oppose [Taco Tico's] motion, which included statements of uncontroverted fact.... The District Court inquired of [Williams] about the existence of exhibits, affidavits or other evidence to support her position during argument on the motion but she had none to offer.”
Rule 141(b) reads, in part, as follows:
“Any party opposing said motion has filed and served on the moving party within twenty-one (21) days thereafter, unless the time is extended by court order, a memorandum or brief setting forth in separately numbered paragraphs (corresponding to the numbered paragraphs of movant's memorandum or brief) a statement whether each factual contention of movant is controverted, and if controverted, a concise summary of conflicting testimony or evidence, and any additional genuine issues of material fact which preclude summary judgment (with precise references as required in paragraph [a], supra).
“The motion may be deemed submitted by order of the court upon expiration of twenty-one (21) days, or expiration of the court ordered extended period, after filing and service on opposing counsel of the brief or memorandum of moving party notwithstanding the failure of the opposing party to comply with paragraph (b), supra. In such cases the opposing party shall be deemed to have admitted the uncontroverted contentions of fact set forth in the memorandum or brief of moving party.” (Emphasis added.) Rule 141 (2011 Kan. Ct. R. Annot. 233).
A ruling that a party opposing summary judgment is deemed to have admitted the movant's uncontroverted facts because of a failure to follow Rule 141 lies within the sound discretion of the trial court. Molina v. Christensen, 30 Kan.App.2d 467, 469–70, 44 P.3d 1274 (2001), rev. denied 273 Kan. 1036 (2002). Judicial discretion is abused under the following circumstances: (1) when it is arbitrary, fanciful, or unreasonable; (2) when it is based on an error of law; or (3) when it is based on an error of fact. State v.. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011). In other words, a trial court abuses its discretion “ ‘only where no reasonable person would take the view adopted by the [trial] court. [Citations omitted.]’ “ In re Marriage of Cox, 36 Kan.App.2d 550, 554, 143 P.3d 677 (2006). Thus, the question for us remains: Did the trial court abuse its discretion when it granted summary judgment in favor of Taco Tico, in part, because Williams failed to comply with Rule 141?
Our Supreme Court has declared that “Rule 141 is not just fluff—it means what it says and serves a necessary purpose.” McCullough v. Bethany Med. Center, 235 Kan. 732, 736, 683 P.2d 1258 (1984). Moreover, our court has noted that “[r]efusal to follow [Rule 141] may often indicate a lack of substance in the parties' arguments that is attempted to be camouflaged through vagueness. A party ignores Rule 141 at its peril.” Bus. Opportunities Unlimited, Inc. v. Envirotech Heat. & Cooling, Inc., 26 Kan.App.2d 616, 618, 992 P.2d 1250 (1999).
The trial court did not abuse its discretion in using the Rule 141 sanction. In this case, Williams' 26–page response to Taco Tico's summary judgment fails to controvert Taco Tico's statement of uncontroverted facts. Williams' response merely reiterates her position as to the underlying facts of the case and argues why she believed that she was entitled to relief. Because Williams failed to controvert Taco Tico's statement of uncontroverted facts, the trial court properly deemed those uncontroverted facts admitted under Rule 141(b).
Our appellate courts have consistently upheld the application of the Rule 141 sanction when a party has failed to comply with the rule. We do not depart from that line of cases. See, e.g., Slaymaker v. Westgate State Bank, 241 Kan. 525, 530–31, 739 P.2d 444 (1987) (no abuse of discretion for using Rule 141 sanction where party opposing summary judgment did not file a response within 21 days but filed a motion for extension of time [which was never granted] near the end of the 21st day); Capitol One Bank, v. Hall, No. 104,056, 2011 WL 768006 (Kan.App.2011) (unpublished opinion) (same); Money v. Fort Hayes State Univ. Endowment Ass'n, 31 Kan.App.2d 322, 324–26, 64 P.3d 458,rev. denied 276 Kan. 969 (2003) (no abuse of discretion for using Rule 141 sanction where party opposing summary judgment did not file a response with motion for reconsideration, arguing it believed moving party would allow it additional time to respond); Bus. Opportunities Unlimited, 26 Kan.App.2d 616 (no abuse of discretion for using Rule 141 sanction).
Moreover, Williams' failure to comply with Rule 141 cannot be excused because she is a pro se plaintiff. In addressing the requirements placed on pro se litigants in civil cases, this court has stated:
“A pro se litigant in a civil case is required to follow the same rules of procedure and evidence which are binding upon a litigant who is represented by counsel. Our legal system cannot function on any basis other than equal treatment of all litigants. To have different rules for different classes of litigants is untenable. A party in civil litigation cannot expect the trial judge or an attorney for the other party to advise him or her of the law or court rules, or to see that his or her case is properly presented to the court. A pro se litigant in a civil case cannot be given either an advantage or a disadvantage solely because of proceeding pro se.” Mangiaracina v. Gutierrez, 11 Kan.App.2d 594, 595–96, 730 P.2d 1109 (1986).
Because Williams, the party opposing summary judgment, failed to controvert any of Taco Tico's factual representations set forth in its memorandum in support of summary judgment, the trial court properly treated those factual representations as undisputed for purposes of deciding the motion. Rule 141; Seitz v. Lawrence Bank, 36 Kan.App.2d 283, 289–90, 138 P.3d 388,rev. denied 282 Kan. 791 (2006). Williams' failure to comply with Rule 141 cannot be excused simply because she is a pro se litigant. Thus, the trial court did not abuse its discretion in determining that Williams' uncontroverted factual contentions were admitted by Williams under Rule 141.
But a failure to dispute the facts presented in support of a motion for summary judgment does not in and of itself permit the trial court to grant the motion. The uncontested facts still must show that the moving parties have established their legal right to judgment. Stormont–Vail Healthcare, Inc., v. Zoble, No. 103,353, 2010 WL 4157102, at *3 (Kan.App.2010) (unpublished opinion). Thus, a question remains: Did Taco Tico's factual assertions support entry of summary judgment in its favor?
Here, Taco Tico's uncontroverted facts showed that it was entitled to judgment as a matter of law. Taco Tico's uncontroverted facts that support this conclusion are as follows:
“7. Dr. Schell has not reviewed any of [Williams'] medical records nor has he consulted with any of [Williams'] treating physicians to confirm the accuracy of her representations to him regarding the cause of her conditions.
....
“10. Plaintiff was involved in an automobile accident on April 30, 2010 and this accident also contributes to her post-traumatic stress disorder and related symptoms.
....
“11. The event of drinking water from Taco Tico which allegedly contained a bleach solution was not the event which triggered [Williams'] post-traumatic stress disorder and related symptoms.”
In other words, Taco Tico's uncontroverted facts stated that Williams' alleged injury was not caused by the actions of Taco Tico. To prove negligence, Williams was required to prove the prima facie elements of duty, breach, causation, and damages. See McCormick v. Board of County Comm'rs of Shawnee County, 272 Kan. 627, 648, 35 P.3d 815 (2001). Taco Tico's uncontroverted facts, which stated that Williams' alleged injuries were not caused by Taco Tico, supports the conclusion that Taco Tico was entitled to judgment as a matter of law.
The trial court also granted summary judgment in favor of Taco Tico for other reasons. At the summary judgment hearing, the trial court stated that summary judgment was proper because Williams had failed to show any type of physical injury to support her negligence action. The trial court stated that “[i]t's also true that you have to have a showing of some physical injury in order to claim, you know, mental health injury. You haven't done that in this case.”
Taco Tico's uncontroverted facts state that Williams' alleged injuries were as follows: “2. Plaintiff claims she suffers from post-traumatic stress disorder, depression, emotional distress, anxiety, fear of future damage, loss of consortium, nightmares, insomnia, mental anguish, pain and suffering and loss of enjoyment of life as a result of this incident.” Additional relevant uncontroverted facts from Taco Tico's motion for summary judgment state the following:
“4. The only expert witness who will be permitted to testify on behalf of [Williams] herein is Dr. Kerin Schell, [Williams'] treating psychologist.
“5. Dr. Schell has treated [Williams] in psychotherapy since January 21, 2010.
“6. Dr. Schell has diagnosed [Williams] as suffering from post-traumatic stress disorder, depression, anxiety, insomnia and nightmares.”
Even though the trial court did not refer to Williams' claim as a negligent infliction of emotional distress (NIED) cause of action, its statements concerning the requirement of a physical injury appear to refer to a NIED cause of action. Indeed, to succeed under a NIED action, a plaintiff must first establish that he or she has a qualifying physical injury under Kansas law. Anderson v. Scheffler, 242 Kan. 857, 860, 752 P.2d 667 (1988); see also Grube v. Union Pacific R.R. Co., 256 Kan. 519, 522, 886 P.2d 845 (1994) (plaintiff must demonstrate a physical injury or a physical impact, which causes an actual injury, to recover for NIED).
When determining if injuries may be classified as physical injuries under a NIED cause of action, Kansas courts have addressed various types of symptoms. See, e.g., Anderson, 242 Kan. at 860 (shock, emotional pain, feelings of guilt, nightmares, and depression due to witnessing accident are not compensable physical injuries when there is no actual physical injury); Hopkins v. State, 237 Kan. 601, 612–13, 702 P.2d 311 (1985) (weight gain is not a compensable physical injury); Reynolds v. Highland Manor, Inc., 24 Kan.App.2d 859, 861–62, 954 P.2d 11 (1998) (plaintiff failed to meet physical injury requirement when she suffered headaches, diarrhea, nausea, crying, shaking, sexual problems, and feelings of stress, all caused by anxiety); Dill v. Barnett Funeral Home, Inc., No. 90,653, 2004 WL 292124, at *8 (Kan.App.2004) (unpublished opinion), rev. denied 278 Kan. 844 (2004) (lack of sleep, recurring dreams, and general fatigue not a compensable physical injury).
In this case, Taco Tico's uncontroverted facts show that Dr. Schell diagnosed Williams with post-traumatic stress disorder (PTSD), depression, anxiety, insomnia, and nightmares. Under the court precedents cited earlier, Williams' PTSD, depression, anxiety, insomnia, and nightmares do not qualify as physical injuries. Consequently, the trial court did not err in granting summary judgment in favor of Taco Tico based on Williams' failure to show that she had suffered a qualifying physical injury.
It should be noted that Williams' response to Taco Tico's memorandum in support of its summary judgment motion could contain facts that allege a physical injury under a simple negligence action. Williams' response states that her throat and chest burned after she allegedly drank the bleach water. As mentioned earlier, the problem with Williams' argument is that she failed to comply with Rule 141. Thus, the factual statements in her response carry little weight. Moreover, even if we were to excuse Williams' failure to comply with Rule 141, summary judgment was still proper because Williams failed to comply with K.S.A. 60–256(e). K.S.A. 60–256(e) reads as follows:
“Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories or further affidavits. When a motion for summary judgment is made and supported as provided in this section, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this section, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.”
Here, Williams failed to comply with K.S.A. 60–256(e) because she did not provide any of the necessary documents to support her response. The trial court expressly addressed Williams' failure to support her allegations with the necessary documentation several times at the summary judgment hearing. The relevant portion of the transcript reads as follows:
“[THE COURT]: Miss Williams, may I interr upt you for a moment and say did you get a written affidavit or did you take the deposition of this health department worker that did this testing that you're telling me about?
“[MISS WILLIAMS]: I have the paper where she went out to the Taco Tico restaurant and she talked with the employee and the employee told her
“[THE COURT]: Do you have a statement, an affidavit from that employee, or do you have a deposition transcript of that employee's deposition?
“[MISS WILLIAMS]: I don't have an affidavit, Your Honor, but I do have the statement when it first happened.
“[THE COURT]: What statement are you talking about?
“[MISS WILLIAMS]: From the health department investigator.
“[THE COURT]: What statement did she make? Was it an affidavit? Was it a deposition that you took of her? What are you talking about, a statement, or was it just some report?
“[MISS WILLIAMS]: It was an investigative report.
....
“[THE COURT]: Miss Williams, do you have a medical report or anything from any doctor saying this burning that you're talking about was caused by the consumption of bleach?
....
“[THE COURT]: We don't have affidavits or transcripts of sworn deposition or other supporting legal documents to support your contentions.”
Because Williams did not support her alleged injuries with any type of supporting documents, she failed to comply with K.S.A. 60–256(e). Consequently, the trial court did not err in granting summary judgment in favor of Taco Tico.
The trial court did not err in granting summary judgment in favor of Taco Tico. Williams' status as a pro se plaintiff does not excuse her failure to comply with Rule 141 and K.S.A. 60–256(e). Moreover, Williams failed to establish that she had suffered a physical injury to support her cause of action. Consequently, we affirm the decision of the trial court. Because we affirm the trial court's decision under the first issue, Williams' other arguments need not be addressed.
Affirmed.